It's important to remember that the purpose of the license is to allow the copyright owner to exercise their rights in a manner they deem fit. Even if they choose to give the code away, that choice is captured in the form of a specifically worded license (MIT, BSD, etc.).
This means that licenses exist because code is copyrightable in the first place, with the license governing the use of said copyright. If AI code is not copyrightable, then no license can govern it.
> If AI code is not copyrightable, then no license can govern it.
This is the crux of the issue. A license controls usage of copyrighted intellectual property. Until the underlying copyright/ip issues are resolved, it seems a moot point to discuss licensing.
That said, if AI code is _not_ copyrightable, does it automatically go into the public domain? Or is there a third category?
[−]TheOtherHobbes · 2026-11-15 Sun 16:09 UTC ·
link
The distinction is between creation and distribution.
Even if you accept that AI code isn't protected by copyright, code isn't public domain unless it's released. The legal issue would likely revolve around what 'released' means.
Code that runs on private servers isn't technically released. Code in web pages technically is.
But ultimately legal decisions decide to a large extent on who has the most money.
The frontier labs may eventually try to argue that they own the IP of all code, content, and inventions generated using their technology. That argument may or may not stand, and it's more likely to be over patent rights than plain copyright.
But there's a fair chance they'll try it once AI is unavoidably embedded in everyone's workflow.
Maybe the Do What The F*ck You Want To Public License (WTFPL). Its a super-permissive open-source license that acts almost like a public domain dedication.
> That said, if AI code is _not_ copyrightable, does it automatically go into the public domain? Or is there a third category?
It means that AI-generated code, including proprietary code, is not covered by the existing license mechanisms, including EULAs. Companies will of course handwave over this, but it would not surprise me if this is challenged in court at some point.
> It's important to remember that the purpose of the license is to allow the copyright owner to exercise their rights in a manner they deem fit.
Just as it's important to remember that the purpose of regulations like copyright and patents are to promote the progress of science and the useful arts.
We're not locked in to a suicide pact with what the Founding Fathers decided back in the late 1700s. Congress can decide that all LLM-generated code is automatically covered by -say- the GPLv3, even if no one holds the copyright to it.
If the absence of a particular person to hold the copyright twists your knickers, you could go a bit further and -say- decide that the people of the United States collectively hold the copyright to all LLM-generated code that's generated by US people or entities, and that relicensing of a particular piece of LLM-generated code must be agreed to by every US citizen that was alive when that code was created.
Maybe, but I don't think there's any legal president for that, is there? Much of existing law is based on centuries of private property rights. I don't see any government undoing that... or at least, not quickly.
> Maybe, but I don't think there's any legal president for that, is there?
We're not locked in to a suicide pact with what the Founding Fathers decided back in the late 1700s. Congress can decide that all LLM-generated code is automatically covered by -say- the GPLv3, even if no one holds the copyright to it.
Article I, Section 8 of the Constitution and its various subsections pretty clearly gives Congress this power.
The IP laws are a) not really modelled after material property rights; b) are quite much more recent than "centuries"; c) there is legal precedent for that, see e.g. the airplane-related patents being pooled in 1917 by the demand from the US government.
> you could go a bit further and -say- decide that the people of the United States collectively hold the copyright
Was going to comment something similar; we do have concepts of "dominium eminens", and "escheated property", and "public domain", and many other similar ideas. If the people (through their representatives) decide on a certain property regime, it absolutely can be implemented even if it's different from the status quo.
> We're not locked in to a suicide pact with what the Founding Fathers decided back in the late 1700s. Congress can decide that all LLM-generated code is automatically covered by -say- the GPLv3, even if no one holds the copyright to it.
I have no issue with changing the law. My comment is about the article and the author's misapplication of the law.
I think it would be the part about how courts have a fairly strong status quo bias and aren't going to remake the entire economy overnight with completely unenforceable provisions.
What are they going to do confiscate the world's gamer GPUs that can run this stuff all locally?
Nobody is going to interpret the laws that way. That's completely stupid.
Everyone is using AI generated code in all sorts of ways, and the idea that the courts are just going to say "nuh-uh. All existing use of AI code is illegal" is completely ridiculous.
Courts don't upend entire economies like that. This would be the remaking of the entire software industry overnight and it would be completely unenforceable.
I'm certainly not going to listen to any such ruling and will continue making code locally. As will basically every other software engineer in the industry.
> Nobody is going to interpret the laws that way. That's completely stupid.
You're absolutely right! And a little more than two hours before you posted this comment, I posted this [0] one! Make sure to read the parent comment for the context... it's pretty important.
Gotcha, not really related to my point that the courts aren't going to completely remake the entire software industry over night and neither is congress.
That's absurd. It is a fantasy. Neither lawmakers or anyone else is going to remake the software economy.
Code without a copyright can generally be distributed and put in the pubic domain, and I wouldn't bet that the few existing court decisions won't be reversed.
But, the license reflects the rights that a copyright owner granted you; I don't see why laundering copyrighted material with training a model should remove the limitations on the material's usage that the author established.
So, while it makes sense to not be able to attach whatever copyright you want to LLM output, if it's the result of training on copyrighted code, the extent to which you're allowed to use it should be the intersection of the rights granted to you by that code's copyright owners.
It should thus carry a license that reflects the intersection of those rights.
What makes it much worse is that the model trainers don't tell you what specific sources determined the output, so you should probably just assume that it's the result of its whole training, and the only rights you have are those granted you by all the authors of the training material; and, this in all likelihood means no rights, for most LLM models in use now.
It's important to remember that the purpose of the license is to allow the copyright owner to exercise their rights in a manner they deem fit. Even if they choose to give the code away, that choice is captured in the form of a specifically worded license (MIT, BSD, etc.).
This means that licenses exist because code is copyrightable in the first place, with the license governing the use of said copyright. If AI code is not copyrightable, then no license can govern it.
This is the crux of the issue. A license controls usage of copyrighted intellectual property. Until the underlying copyright/ip issues are resolved, it seems a moot point to discuss licensing.
That said, if AI code is _not_ copyrightable, does it automatically go into the public domain? Or is there a third category?
Even if you accept that AI code isn't protected by copyright, code isn't public domain unless it's released. The legal issue would likely revolve around what 'released' means.
Code that runs on private servers isn't technically released. Code in web pages technically is.
But ultimately legal decisions decide to a large extent on who has the most money.
The frontier labs may eventually try to argue that they own the IP of all code, content, and inventions generated using their technology. That argument may or may not stand, and it's more likely to be over patent rights than plain copyright.
But there's a fair chance they'll try it once AI is unavoidably embedded in everyone's workflow.
It means that AI-generated code, including proprietary code, is not covered by the existing license mechanisms, including EULAs. Companies will of course handwave over this, but it would not surprise me if this is challenged in court at some point.
Just as it's important to remember that the purpose of regulations like copyright and patents are to promote the progress of science and the useful arts.
We're not locked in to a suicide pact with what the Founding Fathers decided back in the late 1700s. Congress can decide that all LLM-generated code is automatically covered by -say- the GPLv3, even if no one holds the copyright to it.
If the absence of a particular person to hold the copyright twists your knickers, you could go a bit further and -say- decide that the people of the United States collectively hold the copyright to all LLM-generated code that's generated by US people or entities, and that relicensing of a particular piece of LLM-generated code must be agreed to by every US citizen that was alive when that code was created.
Maybe, but I don't think there's any legal president for that, is there? Much of existing law is based on centuries of private property rights. I don't see any government undoing that... or at least, not quickly.
Was going to comment something similar; we do have concepts of "dominium eminens", and "escheated property", and "public domain", and many other similar ideas. If the people (through their representatives) decide on a certain property regime, it absolutely can be implemented even if it's different from the status quo.
I have no issue with changing the law. My comment is about the article and the author's misapplication of the law.
What parts of the six-paragraph Fine Article misapply the law? Be sure to quote and include the context surrounding the quoted section(s).
What are they going to do confiscate the world's gamer GPUs that can run this stuff all locally?
It's completely ridiculous.
Everyone is using AI generated code in all sorts of ways, and the idea that the courts are just going to say "nuh-uh. All existing use of AI code is illegal" is completely ridiculous.
Courts don't upend entire economies like that. This would be the remaking of the entire software industry overnight and it would be completely unenforceable.
I'm certainly not going to listen to any such ruling and will continue making code locally. As will basically every other software engineer in the industry.
You're absolutely right! And a little more than two hours before you posted this comment, I posted this [0] one! Make sure to read the parent comment for the context... it's pretty important.
[0] <https://news.ycombinator.com/item?id=50507914>
That's absurd. It is a fantasy. Neither lawmakers or anyone else is going to remake the software economy.
But, the license reflects the rights that a copyright owner granted you; I don't see why laundering copyrighted material with training a model should remove the limitations on the material's usage that the author established.
So, while it makes sense to not be able to attach whatever copyright you want to LLM output, if it's the result of training on copyrighted code, the extent to which you're allowed to use it should be the intersection of the rights granted to you by that code's copyright owners.
It should thus carry a license that reflects the intersection of those rights.
What makes it much worse is that the model trainers don't tell you what specific sources determined the output, so you should probably just assume that it's the result of its whole training, and the only rights you have are those granted you by all the authors of the training material; and, this in all likelihood means no rights, for most LLM models in use now.